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Last week, the New York Times ran an editorial entitled “Justice and Open Files.” The gist of the editorial was that prosecutors should provide more and earlier pre-trial discovery to defense lawyers than they currently do in order to make the criminal justice system fairer and more reliable. Discovery in criminal cases traditionally includes all arguably relevant documents, witness names, witness statements, scientific evidence, tape recordings, emails, and defendants’ statements. Importantly, the Supreme Court has also mandated that prosecutors turn over exculpatory materials (usually referred to as “Brady material”) and materials that would tend to impeach government witnesses or contradict government arguments (usually referred to as “Giglio material”).

Over the years, there have been many instances where, after a criminal defendant was convicted, the defendant’s lawyer has discovered that the prosecution did not turn over either Brady material or Giglio material. This has resulted in many guilty verdicts being set aside thanks to the hard work of the Innocence Project and similar organizations (like Centurion Ministries) which represent those who claim that they were unjustly convicted. The success rate of these organizations is quite impressive, which is a testament to their professionalism and the lack thereof by prosecutors who obtained wrongful conviction through gross negligence or intentional misconduct.

The Times editorial caused me to reflect on the difference between the way the criminal justice system treats misconduct by ordinary citizen/defendants and the way it treats prosecutors who engage in deliberate misconduct.

When a ordinary defendant is convicted, he or she is sentenced based on certain generic factors, usually (1) individual deterrence, (2) general deterrence, (3) protection of society and (4) retribution. General deterrence means sending a message to the public: if you commit a crime, you will be punished, so don’t do it! If there were no consequences to criminal behavior when the wrongdoer is caught, the shame of being caught, without some penalty, does not provide much of a deterrent. Therefore, general deterrence requires a combination of punitive sanctions (jail, fine, loss of license, etc.) and likelihood of getting caught. Without both, there can be no general deterrence.

And how does the criminal justice system deal with prosecutors who engage in grossly negligent or deliberately fraudulent conduct? The answer is: with kid gloves. Rarely does a prosecutor suffer any professional consequences for conduct which a court later finds was grossly negligent or fraudulent. Indeed, appellate courts that overturn a conviction based on prosecutorial misconduct sometimes do not even refer to the offending prosecutor by name, but instead, refer only to that person as “the Assistant U.S. Attorney on the case” or “the Assistant District Attorney on the case.” Not only do the offending prosecutors not face criminal charges themselves, they usually are not referred to their local bar association’s grievance committee for professional discipline.

Similarly, even though leaking grand jury material is a federal crime, and even though such leaks occur daily (just look at the New York Times or the Wall Street Journalany day), such leaks are virtually never investigated, much less prosecuted as a crime.

So much for the concept of general deterrence when it comes to unprofessional prosecutors! The likelihood of getting caught is negligible. And the punishment that is meted out in the unlikely event of discovery is similarly negligible. Therefore, there is no general deterrence to unprofessional conduct by prosecutors, other than embarrassment and the possible loss of employment (which is probably rare in any event).

Since prosecutors’ offices and grievance committees seem unwilling to investigate and punish prosecutors who are found by courts to have engaged in deliberate misconduct, the legislative branch of government should gather statistics on what happens to prosecutors who are found to have acted in an intentionally or grossly negligence manner. Similarly, it is high time that grand jury leaks are investigated and leakers punished. These kinds of investigations might prod (i.e., embarrass) prosecutors’ offices and grievance committees to step up their enforcement procedures to deal with prosecutorial misconduct.

There should be some concern that such investigations might be abused for political reasons. And it is equally true that prosecutors should not have to fear professional consequences for good faith mistakes. However, when courts find deliberate wrongdoing by prosecutors and grand jury leaks are commonplace, something needs to be done. Otherwise, unscrupulous prosecutors (as rare as they are) have little to fear if they choose to abuse their position of trust and power.